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The Due Diligence Obligation to Prevent Violence Against Women

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The Due Diligence Obligation to Prevent Violence Against Women The Due Diligence Obligation to Prevent Violence Against Women: The Case of Pakistan Legal Report New York December 22, 2011 Legal report prepared by: Human Rights Foundation Publication date: December 22, 2011 Author: Rebecca H. Rittenhouse, Junior Legal Researcher, Human Rights Foundation The Human Rights Foundation (HRF) is a nonprofit nonpartisan organization that promotes and protects human rights globally, with an expertise in the Americas. HRF unites people in the common cause of defending human rights and promoting liberal democracy. Our mission is to ensure that freedom is both preserved and promoted around the world. Human Rights Foundation 350 Fifth Avenue, # 4515, New York, NY 10118 www.HumanRightsFoundation.org 2 Table of Contents I. Due Diligence Obligation to Address Violence Against Women ............................................................ 4 A. Prevention ......................................................................................................................................... 5 B. Investigation ...................................................................................................................................... 6 C. Prosecution ........................................................................................................................................ 6 D. Compensation ................................................................................................................................... 8 II. The Prevention of Violence Against Women in Pakistan: Achievements and Challenges ...................... 8 A. Legislative and governmental measures taken .................................................................................. 9 B. Continuation of violence against women ........................................................................................ 11 1. Recent statistics ........................................................................................................................... 11 2. Honor crimes ............................................................................................................................... 12 3. Tribal council influence .............................................................................................................. 12 III. Fulfilling the Prevention Requirement .................................................................................................. 13 A. Promoting prevention by implementing and enforcing effective legislation and government programs ................................................................................................................................................. 14 1. Eliminating legal and legislative loopholes ................................................................................ 14 2. Ensuring implementation by the judiciary and law enforcement ................................................ 15 3. Providing and informing women of available resources ............................................................. 15 B. Promoting prevention through education ........................................................................................ 16 1. Equal access to education ............................................................................................................... 17 2. NGO and government programs ..................................................................................................... 18 IV. Conclusion ............................................................................................................................................ 19 V. Recommendations .................................................................................................................................. 20 3 The Due Diligence Obligation to Prevent Violence Against Women: The Case of Pakistan International law recognizes a State’s obligation to adhere to a standard of due diligence when addressing the issue of violence against women. This standard consists of four equally important obligations: prevention, investigation, prosecution, and compensation. Since the ratification of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 1996, Pakistan has focused much of its attention on the obligation of prevention and has enacted new legislation that focuses on the rights of women, specifically concerning violence against women. Current statistics suggest that without additional, significant action taken by the government, this legislation has largely failed to stop violence against women in Pakistan. Ensuring compliance with the legislation—along with nationwide campaigns promoting women’s rights, and a more serious dedication to education, especially in rural areas—is necessary for Pakistan to fulfill its due diligence obligation to prevent violence against women. Part I of this report defines the due diligence standard and evaluates the four criteria a State must meet in order to fulfill its obligation under the standard. Part II describes recent legislative and governmental measures Pakistan has taken to prevent violence against women. It also analyzes Pakistan’s shortcomings in this area which permit the continuation of violence against women. Part III suggests actions that Pakistan can take to fulfill its obligation to prevent violence against women such as implementing and enforcing legislation and government programs, and supporting equal education for all. Part IV concludes that while Pakistan’s efforts should be recognized, it continues to fail in fulfilling its obligations under the due diligence standard to prevent violence against women. Part V provides recommendations to Pakistan to aid it in ultimately fulfilling its obligation under CEDAW. I. Due Diligence Obligation to Address Violence Against Women The international standard regarding a State’s obligations when dealing with violence against women is one of due diligence to prevent, investigate, prosecute, and compensate for these crimes. 1 This report focuses on the obligation of prevention, but will first briefly describe all four aspects of the international standard.2 1 Committee on the Elimination of Discrimination Against Women, General Recommendation 19 (11 th session, 1992); Declaration on the Elimination of Violence Against Women, art. 4(c), U.N. Doc. A/RES/48/104 (Dec. 20, 1993); United Nations Commission on Human Rights Res. 1994/45: Question of integrating the rights of women into the human rights mechanisms of the United Nations and the elimination of violence against women (Mar. 4, 1994); Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, art. 5, Apr. 7, 2011, Europ. T.S. No.210. 2 In 2006, the Special Rapporteur on Violence Against Women, its Causes and Consequences affirmed that this standard of due diligence is a universal one, as well as a rule of customary international law. Special Rapporteur on Violence Against Women, its Causes and Consequences, The Due Diligence Standard as a Tool for the Elimination of Violence Against Women , ¶ 29, U.N. Doc. E/CN.4/2006/61 (Jan. 20, 2006) ( prepared by Yakin Ertürk). 4 A. Prevention The first obligation of a State in complying with the due diligence standard is to prevent violence against women. CEDAW addresses this obligation by calling on its Parties: [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. 3 The Council of Europe’s Convention on Preventing and Combating Violence Against Women and Domestic Violence (hereafter, Council of Europe’s Convention) also addresses the prevention of violence against women by promoting “changes in the social and cultural patterns of behavior of women and men with a view of eradicating prejudices, customs, and traditions and all other practices which are based on the idea of the inferiority of women . .” 4 Former Special Rapporteur on Violence against Women, its Causes and Consequences (Special Rapporteur) Radhika Coomaraswamy developed certain criteria for determining whether a State has complied with its obligation of due diligence—one of which is to determine whether the State has implemented measures to raise awareness and modify discriminatory policies with the aim of preventing acts of violence against women. 5 According to a 2011 report by the Special Rapporteur, “[t]he most common first step to prevent acts of violence against women . is the enactment of legislation.” 6 In the case of Vertido v. Philippines , however, the Committee on the Elimination of Discrimination Against Women (Committee) emphasized that States parties to CEDAW have an obligation to “take appropriate measures . to modify or abolish not only existing laws and regulations, but also customs and practices that constitute discrimination against women.” 7 3 Convention on the Elimination of all Forms of Discrimination Against Women, art. 5(a), Dec. 18, 1979, 1249 U.N.T.S. 13. 4 Council of Europe’s Convention on Preventing and Combating Violence Against Women and Domestic Violence, Chapter III, art. 12, Apr. 2, 2011, Europ. T.S. No.210. 5 Special Rapporteur on Violence against Women, its Causes and Consequences, Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women: Violence against women in the family , ¶ 25,
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